Published Appellate Court Opinions

Atlantic County Assignment Judge Julio Mendez dismissed the condemnation complaint as a manifest abuse of power because the Casino Reinvestment Development Authority (CRDA) did not provide reasonable assurances that the proposed redevelopment would come to fruition in the foreseeable future. The CRDA sought to condemn the property in furtherance of its mandate to promote tourism in Atlantic City. At the time of the decision under review, the CRDA had no specific redevelopment plans under consideration for the Project; it had not issued a request for proposals (RFP) to prospective developers, and no developer had committed to redeveloping within the South Inlet Mixed Use Development Project area. Nevertheless, the CRDA maintained it had a right to "bank" the property for redevelopment at some unspecified time in the future. Agreeing with Judge Mendez, the court affirms.

Appellant A.Y. appeals from a judgment civilly committing him to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. He was convicted of the predicate act of second-degree sexual assault, N.J.S.A. 2C:14-2(c), and was diagnosed as suffering from Antisocial Personality Disorder and other conditions.

The State's experts opined appellant's personality disorder affects his cognitive, volitional, or emotional capacity, making it highly likely he will sexually reoffend if not kept under the care, control and treatment of a secure facility such as the STU. The State's experts relied, in part, on the results of the MnSOST-R and Static-99R actuarial instruments to determine whether A.Y. was highly likely to sexually reoffend.

Appellant argued he had regained volitional control over his sexually assaultive behavior through treatment and medication compliance. Appellant further argued the State's experts rendered inadmissible net opinions lacking any probability basis to find him highly likely to sexually reoffend. Appellant also argued the State's experts could not point to any methodology or objective standards used to reach their sexual recidivism risk findings.

The court found the State's experts relied on information reasonably relied on by experts in the field, the State's experts did not render inadmissible net opinions, the actuarial instruments were properly used by the State's experts in the formation of the basis of their opinions, and the methodology utilized by the State's experts satisfied the requirements imposed by the Court in In re Accutane Litig., 234 N.J. 340 (2018). Accordingly, the court determined the trial court did not abuse its discretion in admitting and considering the testimony of the State's experts, including their use and reliance upon the MnSOST-R and Static-99R actuarial instruments.

The court affirmed, finding the credible evidence in the record supported the trial court's finding that appellant suffered from a personality disorder that makes it highly likely he will not control his sexually violent behavior and will reoffend if not confined to the STU for treatment.

Defendants, the Borough of Point Pleasant Beach and the Borough's Zoning Board of Adjustment, appeal the trial court's May 3, 2018 decision in this land use case. The court declared invalid and unenforceable a variance provision and associated deed restriction that requires one unit of the subject two-family dwelling to be occupied by the owner and not rented to a third-party tenant.

These owner-occupancy limitations were imposed by the Board in 1999 as a condition of approving a variance allowing plaintiff Maria I. Tirpak and her now-deceased husband to raze their then-existing dwelling and construct a new two-family dwelling in a zone limited to single-family residences. The Board also required the Tirpaks to memorialize the condition as a recorded deed restriction.

The trial court concluded the variance condition and deed restriction impermissibly discriminated against renters, and wrongfully predicated the allowable use of the property upon the identities of its occupants.

On appeal, defendants argue the trial court should have dismissed plaintiff's challenge to the restrictions as untimely. They further contend the trial court misapplied the law and principles of equity in nullifying the variance condition and deed restriction.

This appellate court rejects defendants' arguments, substantially for the sound reasons expressed in Assignment Judge Marlene Ford's May 3, 2018 written decision, which is published in tandem with this opinion at ___ N.J. Super. ___ (App. Div. 2019).

The issue presented on this appeal is whether a county register or clerk has the authority to charge a "convenience fee" or surcharge for the electronic filing of documents concerning real property. The Legislature has prescribed the fees a county register or clerk may charge for the filing of documents, and a convenience fee is not one of the legislatively authorized fees. Accordingly, the court holds that a county register or clerk cannot impose such a fee. The court therefore reverses a June 23, 2017 order granting summary judgment to the Essex County Register of Deeds and Mortgages (Essex Register) and dismissing the complaint of plaintiff, the New Jersey Land Title Association (Association). The court remands with direction that the Association be granted partial summary judgment on its claim to enjoin, prospectively, the Essex Register from collecting the convenience fee. On remand, the trial court will also address the Association's claim for disgorgement of the fees previously paid.

Defendant was charged with first-degree murder but convicted of aggravated manslaughter. He argued in his direct appeal that the trial judge should have severed his charges from those brought against a co-defendant and that, even though not requested, the trial judge should have sua sponte instructed the jury on self-defense. In rejecting his severance argument, the court recognized a self-defense theory was "presented" and defendant received its benefit when the jury convicted him "of aggravated manslaughter rather than first-degree murder." But, in rejecting the other argument, the court held that the judge was not required to instruct on self-defense because "the defense of self-defense would likely have been unsuccessful."

In appealing the later denial of his post-conviction relief petition after an evidentiary hearing, defendant argued his trial counsel was ineffective for failing to request jury instructions on self-defense. In reversing and remanding for a new trial, the court held that trial counsel should have requested those instructions and defendant was prejudiced as a result. Even though, in the direct appeal, the court inconsistently considered the role self-defense played at trial, the court in this post-conviction relief appeal concluded that the evidence supported a self-defense theory and appropriate jury instructions might have provided benefits for defendant even greater than he received when the jury found him guilty on a lesser-included offense of first-degree murder.

The Off-Track and Account Wagering Act, N.J.S.A. 5:5-127 to -160, does not permit persons with accounts in New Jersey's account-wagering system (AWS) from placing wagers with the AWS while located outside the State, and this restriction on wagering does not violate the Commerce Clause of the United States Constitution.

In State in the Interest of N.P., 453 N.J. Super. 480 (App. Div. 2018), the court determined a Family Part judge may not divert juvenile complaints from court action without first affording the State an opportunity to be heard. Following that decision, the Family Part judge duly noticed the State of its intention to divert complaints filed against C.F., A.G., and T.S., but conducted the hearings without providing notice to the juveniles.

In these three consolidated appeals, the court reverses the trial judge's orders. Because the matters were heard in open court, due process mandates notice to the juveniles, affording them the opportunity to be heard and to consult with counsel before their complaints are diverted from court action.

In Mansell v. Mansell, 490 U.S. 581 (1989), the United States Supreme Court held the Uniformed Services Former Spouses Protection Act, 10 U.S.C. § 1408, federally preempted state family courts from equitably distributing a disability retirement pension in a divorce. In 2017, the Court in Howell v. Howell, __ U.S. __, 137 S. Ct. 1400 (2017), held family courts are federally preempted from indemnifying a spouse for the inability to distribute disability benefits, but could take such a contingency into consideration by other means, including modifying or awarding alimony.

In this case, the court reverses the trial court's order, which required the spouse receiving disability benefits to indemnify the payee spouse by paying her a hypothetical value of her share of the pension, because indemnification was preempted by Howell. However, the court holds conversion of the pension into a disability benefit was a substantial and permanent change in circumstances, which invalidated the parties' alimony waiver, and accordingly reverses the trial court's order denying alimony for consideration of such an award.

In these back-to-back appeals involving automobile insurance, consolidated for purposes of this opinion, defendants appeal from Law Division orders vacating binding arbitration awards entered in their favor against plaintiff New Jersey Manufacturer's Insurance Company (NJM). In both cases, the Law Division held the PIP fee schedule does not provide for payment to an ambulatory surgical center (ASC) for procedures not listed as reimbursable when performed at an ASC. Defendants argue that N.J.A.C. 11:3-29.4(g) requires insurance companies to reimburse ASCs for any procedures performed under Current Procedural Terminology (CPT) codes subsequently approved by Medicare. Defendant's arguments are rejected and the trial court orders are affirmed.

The court rejects Regina Tasca's appeal of the final agency decision of the Board of Trustees (Board), Police and Firemen's Retirement System (PFRS), denying her twenty-year service (early) retirement pension benefits under N.J.S.A. 43:16A-5(3). Tasca's transfer of six years of service credit that gave her more than the twenty-year service credit threshold needed for early retirement did not qualify her for early retirement pension benefits. The Board properly interpreted N.J.S.A. 43:16A-5(3) in determining that because she was not a PFRS "member" at the critical time of the statute's January 18, 2000 effective date, she was ineligible for early retirement pension benefits. The court also concludes that the doctrine of equitable estoppel does not afford Tasca relief against a governmental body, such as the Board, and there was no misrepresentation by the PFRS staff that she was eligible for early retirement pension benefits under N.J.S.A. 43:16A-5(3). The court further concludes that even though the Law Division action settlement with her former employer include her seeking early retirement pension benefits based on the good faith belief that she was eligible for the benefits, the public policy favoring settlements against parties who have entered into them serves no basis for granting her the benefits in this matter. The Board's decision is affirmed.

Appellants K.G, C.C., J.L., and D.C. are convicted sex offenders who are monitored by respondent New Jersey State Parole Board (the "Board") as offenders who are subject to parole supervision for life ("PSL") under N.J.S.A. 2C:43-6.4. Each appellant challenges certain conditions of PSL, most of which restrict Internet use, that the Board has imposed upon them. The instant appeals follow in the wake of the New Jersey Supreme Court's decision in J.I. v. N.J. State Parole Bd., 228 N.J. 204 (2017), which addressed the parameters of the Board's authority to impose conditions restricting Internet access.

We affirm in part, reverse in part, and remand in part. In particular, we reach the following major legal conclusions: (1) the Board's imposition of Internet monitoring conditions upon PSL offenders, including the use of monitoring software, mandatory password disclosure, and unannounced device inspections, does not facially violate the constitutional protections against unreasonable searches or the constitutional rights to privacy; (2) the Board's use of the terms "Internet-capable device," "social networking service," "frequenting establishments whose primary purpose is the sale of alcohol," and "sexually-oriented websites, material, information or data" does not violate due process under the void for vagueness doctrine; (3) all conditions restricting Internet access, including monitoring conditions, should be reasonably tailored to the circumstances of the individual offender, "taking into account such factors as the underlying offense and any prior criminal history, whether the Internet was used as a tool to perpetrate the offense, the rehabilitative needs of the offender, and the imperative of public safety[,]" J.I., 228 N.J. at 224; and (4) in the administrative appeals process, PSL offenders are not entitled to discovery and are only entitled to a hearing when warranted based on "the timing of and justification for the Internet restriction, the severity and length of the restriction, whether facts are contested or uncontested, and whether credibility determinations must be made." Id. at 233.

The court affirms the trial court's termination of E.M.C.'s parental rights to his child, A.E.C. The child's mother did not appeal the judgment terminating her parental rights. The trial record supported that E.M.C. was given a meaningful opportunity to reunify with his child. The Division of Child Protection and Permanency's (Division's) requirement that E.M.C. attend a psychological and bonding evaluation was not unreasonable nor did it thwart his relationship with the child or reunification efforts. The Division made reasonable efforts to locate E.M.C., especially where, as here, E.M.C. was aware the child was in placement and had a phone number to contact him. The records supported the trial court's finding that E.M.C.'s absence from the child was voluntary. The court distinguishes this case from N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145 (2010), where the parent took affirmative steps to satisfy the conditions the Division set for him, which was not the case here for E.M.C.

Judge Guadagno wrote a dissent.

The primary question raised in this appeal is whether an auto insurer may combine uninsured and underinsured motorist coverage in a single section and include exclusions not listed on the policy's declaration page. We also consider if an insurer may exclude underinsured motorist coverage for an accident involving a vehicle owned by the insured but not covered under the subject policy. Because we find the exclusion does not violate public policy or result in ambiguity, we reverse.

Judge Suter wrote a dissent.

In this appeal, the panel extends to a Family Part context the ruling in State v. Doriguzzi, 334 N.J. Super. 530, 536 (App. Div. 2000) holding that a HGN test is not admissible at a trial to show an individual is guilty of driving under the influence. The court now holds that HGN test results cannot be considered in a Title 9 abuse or neglect hearing to establish that defendant was under the influence when supervising his four minor children while the mother was unconscious. However, the panel concludes the order finding abuse or neglect was consistent with the law because it was supported by substantial independent credible evidence that defendant was under the influence and that his conduct created a substantial risk to the children's mental health and physical safety. The panel affirms the order.

Plaintiffs purchased an auto policy from State Farm that provided $15,000 in PIP coverage and designated a private health insurance provider as primary. They filed a verified complaint seeking to reform their auto policy to provide the maximum $250,000 PIP benefits, claiming: (1) the policy was invalid because their adult son was not insured by private health insurance; (2) the State Farm agent required them to sign a blank coverage selection form and thereafter selected the lower PIP coverage option; (3) this act by the agent was willful, wanton, intentional, or grossly negligent. On cross-motions for summary judgment, the trial court found State Farm is entitled to immunity under N.J.S.A. 17:28-1.9.

This court affirms and holds that insureds are under a duty to examine their insurance documents and to notify the insurer if there is a discrepancy between what they initially requested and what the insurer has actually provided. State Farm met all of the requirements for immunity under N.J.S.A. 17:28-1.9.

In 2012, the Legislature amended N.J.S.A. 34:15-15, granting the Division of Workers' Compensation exclusive jurisdiction over claims brought by medical providers for payment of services rendered to injured employees. These appeals questioned whether, through its silence, the Legislature intended – via this 2012 amendment – to apply the two-year statute of limitations, N.J.S.A. 34:15-51, contained in the Workers' Compensation Act, or whether the Legislature intended to leave things as they were and continue to apply the six-year statute of limitations for suits on contracts, N.J.S.A. 2A:14-1, to such claims. The court concluded that subjecting medical-provider claims to the two-year time-bar would be like jamming a square peg into a round hole, and that to reinterpret the two-year time-bar to fit such claims would require the reshaping of the edges of this square peg contrary to principles of judicial restraint. The court reversed the judgments that dismissed these medical-provider claims.

This case exemplifies an inadequate way for an employer to go about extracting its employees' agreement to submit to binding arbitration for future claims and thereby waive their rights to sue the employer and seek a jury trial.

The employer in this case emailed to its workforce what it called a "training module" (or "activity" or "course"). The module described the company's mandatory arbitration policy, as presented in a series of slides on computer screens. One screen provided employees with the opportunity to access a "Resource" link to the full text of the policy. In a separate email, the employer supplied a computer link to Frequently Asked Questions ("FAQs") concerning the policy.

On the third slide of the module presentation, the employees simply were asked to "acknowledge" it with the click of an electronic button. The module declared that if an employee did not click the acknowledgement, but continued to work for the company for sixty or more days, the employee would be "deemed" to be bound by the arbitration policy.

Although the arbitration policy is labeled an "agreement" and that word appears multiple times on the slides and within the linked policy, the module did not request employees to provide signatures conveying their agreement. Nor were the employees asked – within the four corners of the pivotal "click" box at the end of the presentation – to memorialize that they expressly agreed to the policy. They were only asked within the box to "acknowledge" it.

This oblique procedure does not yield the valid personal agreement of an employee to give up his or her statutorily protected rights to litigate claims against an employer in a public forum and seek a trial by jury. The procedure falls short of the requirements of New Jersey contract law, particularly the Supreme Court's longstanding precedent in Leodori v. CIGNA Corp., 175 N.J. 293, 303 (2003) (holding an employee's valid waiver of statutory rights, there in the context of an employer's binding arbitration policy, "results only from an explicit, affirmative agreement that unmistakably reflects the employee's assent") (emphasis added), as well as the Court's more recent opinion in Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430, 447 (2014) (holding the words of an arbitration agreement "must be clear and unambiguous that a [person] is choosing to arbitrate disputes rather than have them resolved in a court of law") (emphasis added).

The primary question raised in this appeal is whether an appellant, who has served his sentence pursuant to the Sex Offender Act (SOA), N.J.S.A. 2C:47-1 to -10, can be compelled to undergo a psychological evaluation, pursuant to N.J.A.C. 10A:71-3.54(i)(3) and 10A:71-7.19A, for violation of certain conditions of parole supervision for life (PSL), and mandatory parole supervision (MPS), imposed outside the SOA.

The panel reverses the Board's decision in part, holding it cannot compel such an evaluation. Absent further comment by the Legislature, these regulations only apply to individuals who have been released on parole before completing their sentence.

The court reverses defendant's conviction of purposeful murder and related firearms offenses. The court concludes that defendant's trial was tainted by a detective's reference, in violation of a prior court ruling, to defendant's alleged gang membership and the presence of gangs in the area of homicide. The panel concludes that the court's curative instruction was insufficient to alleviate the prejudice caused by the detective's remarks.

Judge Ostrer wrote a separate, unpublished concurrence.

Plaintiff filed a civil action against his employer alleging wrongful termination. The Law Division granted defendant's motion to compel arbitration. Plaintiff filed a motion for reconsideration pursuant to Rule 4:49-2 that was received by defendant and the trial court more than twenty days from the date defendant's served plaintiff with the order compelling arbitration. The trial court nevertheless granted plaintiff's motion and directed the matter to proceed to trial.

Subject matter jurisdiction cannot be waived by the parties' failure to object, nor conferred upon the court by the parties' agreement. Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 65-66 (1978). This court holds that judges have an independent, non-delegable duty to raise and determine whether the court has subject matter jurisdiction over the case whenever there is a reasonable basis to do so. Here, the Law Division did not have subject matter jurisdiction at the time it granted plaintiff's untimely motion for reconsideration under Rule 4:49-2.